Justice Antonin Scalia Understood: Religious and Economic Liberty are Flip Sides of the Same Coin

By Ken Blackwell & Rob Schwarzwalder Published on February 20, 2016

The late Justice Antonin Scalia was many things — brilliant, principled, good hearted, fearless. He was also an unmatched defender of constitutional liberties, not least of which is property rights.

As George Mason Law professor Ilya Somin notes, “During his 30 years on the Court, (Scalia) helped lead a revival of judicial protection for constitutional property rights (and) deserves great credit for his role in strengthening judicial protection for property rights.”

The right of owning what one earns or purchases is one of the indisputable reasons for America’s economic prosperity. Yet those on the Left simply refuse to accept it.  Bernie Sanders and Hillary Clinton would, if elected, enact even more confiscatory tax hikes than already exist.  In the name of “fairness,” they would mandate coercive charity: One segment of the population being required to give some of its income to another.

According the non-partisan Tax Foundation, if the Sanders plan were enacted, it would result in “10.56 percent lower after-tax income for all taxpayers … when accounting for reduced GDP, after-tax incomes of all taxpayers would fall by at least 12.84 percent.” As to the Clinton plan, it would reduce America’s GDP by one percent annually over the long-term — this at a time of economic sluggishness that is becoming endemic.

And who are those hit hardest by tax hikes? Lower income families and workers, who are squeezed out of jobs by employers whose new tax burdens prevent them from keeping on marginal employees or creating new, entry-level jobs.

Yet the Founders’ view of property was more expansive than ownership of material possessions. As the “Father of the Constitution,” James Madison, put it, “In [one] sense, a man’s land, or merchandise, or money is called his property,” Madison wrote in 1792.  “In [another] sense, a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person.”

As Madison observes, one’s “religious … profession and practice” is implicit in the idea of private property. In his words, “The religion … of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”

Both religious liberty and the right to own property are under attack by the current presidential administration. The left understands that in order to implement fully its long-term project of statism, it has to persuade a majority that individual rights must be diminished in favor of “the common good,” or some such undefined but noble-sounding phrase.

From trying to coerce an order of Catholic nuns (the Little Sisters of the Poor) into providing contraceptives in their health insurance plan, to “strongly objecting” to religious liberty provisions for military personnel, President Obama has shown a desire to reduce robust religious liberty expressions.

If the Little Sisters are compelled legally to offer contraceptive coverage and they refuse, they will be hit with crippling fines that could well cost them their buildings and, thus, their ability to offer the many services that do so much for so many. Loss of religious liberty would adversely and directly affect ownership of property.  The loss of the many services faith-based organizations provide, from food kitchens and youth programs to job training and education ministries, would encumber an inefficient government with yet more obligations.

Justice Scalia understood that religious liberty is the very foundation of our other freedoms. As he said in 2014, “I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion.”

Religious liberty deters greater dependence on an increasingly powerful, invasive and controlling state. Such liberty is part of the property, in the truest sense, of all men and women. That’s why it is imperative that we recognize the link between religious liberty and the right to private property.  One cannot really be had without the other.


Blackwell, former Treasurer of Ohio and U.S. Ambassador to the U.N. Human Rights Commission, is Senior Fellow for Family Empowerment at the Family Research Council. Schwarzwalder, FRC’s Senior Vice-President, formerly was Director of Corporate Communications at the National Association of Manufacturers.

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